Opinion
No. 110959.
02-13-2015
STATE of Kansas, Appellee, v. David M. CISNEROS, Appellant.
Joanna Labaslida, of Kansas Appellate Defender Office, for appellant. Charles D. Baskins, county attorney, and Derek Schmidt, attorney general, for appellee.
Joanna Labaslida, of Kansas Appellate Defender Office, for appellant.
Charles D. Baskins, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In keeping with a plea agreement, David Cisneros pled no contest to two counts of aggravated indecent solicitation of a child in violation of K.S.A. 21–3511(a) —see K.S.A.2014 Supp. 21–5508(b)(1). Prior to sentencing, however, Cisneros moved to withdraw his pleas. After an evidentiary hearing, the district court denied Cisneros' motion and sentenced him to a controlling term of 50 months' imprisonment.
Cisneros raises three issues on appeal. First, he contends the district court abused its discretion by failing to inquire about a potential conflict of interest between him and his attorney. Second, Cisneros claims the district court erred by denying his motion to withdraw his no contest pleas. Third, Cisneros asserts the district court imposed an illegal sentence because it erroneously calculated his criminal history by classifying his out-of-state pre-guidelines conviction for assault with a deadly weapon as a person crime. Having carefully considered the record and the briefs, we affirm the convictions, vacate the sentences, and remand for resentencing.
Factual and Procedural Background
On May 7, 2013, Cisneros pled no contest, pursuant to plea negotiations, to two counts of aggravated indecent solicitation of a child, severity level 5 person felonies. In exchange for his pleas, the State agreed to dismiss the original complaint charging Cisneros with aggravated indecent liberties with a child, an off-grid felony. The State also agreed to not oppose Cisneros' request for probation if his criminal history score allowed it and a suitable treatment plan was proposed.
Cisneros claimed that his criminal history score would fall within a border box on the sentencing grid, which would allow him to seek probation rather than imprisonment. As part of the plea agreement the State specified, however, that it would “in no way warrant” Cisneros' belief that his criminal history would place him in a border box for sentencing purposes. In fact, the parties agreed that if Cisneros' understanding of his criminal history was not accurate, it would not serve as grounds for withdrawal of the pleas. The terms of the plea agreement, recitation of rights, and sentencing grid were memorialized in “Defendant's Confirmation of Plea Bargain Agreement” signed by Cisneros and dated May 1, 2013.
At the plea hearing, the district court determined that no one threatened, coerced, or made Cisneros any promises regarding his pleas, that Cisneros was satisfied with his attorney's services, and that he understood his rights, the charges against him, and the consequences of his pleas. The district court found Cisneros guilty after finding that his pleas were “freely, voluntarily and intelligently made after advice of competent, legal counsel, William R. McQuillan.”
Prior to sentencing, however, Cisneros filed a motion, prepared by McQuillan, to withdraw his no contest pleas for good cause. Several grounds for plea withdrawal were raised in the motion, however, not all of these grounds have been raised on appeal. We deem those issues not raised, argued or briefed to be waived and abandoned on appeal. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Relevant to this appeal, in the motion for plea withdrawal Cisneros contended that with regard to his criminal history he “believed that inquiries made about prior felonies were for sex related felonies.” (Emphasis added.) As a result, because his prior convictions were not sex related, his plea agreement was premised upon “[a] mutual mistake ... between [himself] and the State ... that [he] would be in a border box ... for sentencing purposes.” Additionally, in the motion Cisneros claimed, without elaboration, that his “pleas were not knowingly made.”
On July 17, 2013, the district court held an evidentiary hearing to consider Cisneros' motion to withdraw pleas. Cisneros testified that when he agreed to enter his pleas, he believed he would receive “a couple years probation and no sentencing for prison” and a 2–year registration period.
Cisneros explained that although he has a criminal record, he believed that his criminal history score would only include sex related crimes. As a result, while Cisneros “made it sound like [he] didn't have no [sic ] record period [,] ... [he] didn't mean it like that.” Cisneros indicated this mistaken belief was the result of several factors, including McQuillan's questioning about his prior convictions and his failure to “really go into detail”; Cisneros' brain damage, which causes him not to “really remember anything too much”; his belief that everyone knew about the contents of his criminal record “from the first day [he] went to jail”; and the fact that he does not “like to talk about [the things on his record, he] like[s] to put them away and move on in [his] life and just keep going, because it's the way life is supposed to go.”
Regardless of the reason, Cisneros testified that prior to the plea agreement and his pleas he never told McQuillan about his prior felony driving under the influence conviction and a felony assault with a deadly weapon conviction in Oklahoma.
The district court denied Cisneros' motion, finding that Cisneros failed to show good cause to set aside his pleas. Cisneros was sentenced on August 28, 2013. The district court denied Cisneros' request for a durational and dispositional departure and, based on a criminal history score of C, sentenced him to a controlling prison term of 50 months followed by lifetime postrelease supervision. Cisneros filed this timely appeal.
Failure to Inquire Into a Potential Attorney–Client Conflict of Interest
On appeal, Cisneros contends the district court erred at the hearing on the motion to withdraw pleas when it failed to inquire into a potential conflict of interest between Cisneros and McQuillan. According to Cisneros, at the hearing he “made several comments strongly indicating that there may be a conflict of interest between himself and his attorney.” The State, on the other hand, argues that the district court did not err because it had no reason to believe such a conflict existed due to Cisneros' failure to articulate a claim of attorney dissatisfaction at the hearing.
At the outset, a brief summary of the relevant law regarding attorney-client conflicts of interest is necessary. When the State is represented at a plea withdrawal hearing, the defendant has a constitutional right, under the Sixth Amendment to the United States Constitution, to be represented by “conflict-free counsel” unless the defendant waives this right. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). If a defendant seeks substitute counsel, justifiable dissatisfaction must be shown. Justifiable dissatisfaction is defined as a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication. State v. Brown, 300 Kan. 565, 575, 331 P.3d 797 (2014). In the case on appeal, Cisneros' claim of justifiable dissatisfaction is based solely on a possible conflict of interest.
Appellate courts review a district court's decision on disqualification of counsel for a conflict of interest and its refusal to appoint new trial counsel for an abuse of discretion. Hulett, 293 Kan. at 318. A judicial action constitutes an abuse of discretion if it is (1) arbitrary, fanciful, or unreasonable, i.e., no reasonable person would have taken the view adopted by the court, (2) guided by an erroneous legal conclusion, or (3) based upon an error of fact. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
It is a district court's obligation to ensure that a defendant's right to counsel is honored; consequently, “ ‘[w]here a [district] court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further. ’ [Citations omitted.]” (Emphasis added .) State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). The defendant bears the burden, however, of providing “ ‘an articulated statement of attorney dissatisfaction ... to trigger the district court's duty to inquire into a potential conflict.” (Emphasis added.) State v. Wells, 297 Kan. 741, 755, 305 P.3d 568 (2013) (quoting State v. Rand, No. 106,774, 2012 WL 6634397, at *5 [Kan.App.2012] [unpublished opinion], rev. denied 297 Kan. 1254 [2013] ); superseded by statute on other grounds as stated in State v. Waller, 299 Kan. 707, 328 P.3d 1111 (2014) ; see Brown, 300 Kan. at 575 ; State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999).
When a district court is obligated to inquire into a conflict of interest and fails to do so, an abuse of discretion has occurred. State v. Sharkey, 299 Kan. 87, 96–97, 322 P.3d 325 (2014). As the party asserting the district court abused its discretion, Cisneros bears the burden of showing the abuse of discretion. See Hulett, 293 Kan. at 319.
To be clear, this first issue on appeal is not whether Cisneros was entitled to substitute counsel. The question presented is whether Cisneros made an articulated statement of attorney dissatisfaction at the plea withdrawal hearing that was sufficient to trigger the district court's duty to inquire further. Although Cisneros did not raise this issue below, a defendant is not required to “explicitly request new counsel to initiate the district court's duty to inquire[;][i]nstead, [appellate courts] look to whether the district court knew or should have known of a potential conflict. [Citation omitted.]” State v. Prado, 299 Kan. 1251, 1257, 329 P.3d 473 (2014).
In support of his legal contention, Cisneros claims he made “several statements” at the plea withdrawal hearing which should have alerted the district court to inquire into the existence of a potential attorney-client conflict. Specifically, he points to the italicized portions of the following exchanges between him and either McQuillen or the prosecutor:
“[MCQUILLAN:] When you entered into the plea bargain agreement what was your understanding of the terms of that agreement?
“[CISNEROS:] Well, what kept coming out there as a couple years probation and no sentencing for prison, and that's all I kept thinking is well I'll go for that if they're not going to send me to prison. So you were talking maybe, you know, two years or more than three or something, and I thought
“[MCQUILLAN:] Two or three years of what?
“[CISNEROS:] “Yeah, probation and then I thought you know, I'll go ahead and go for that you know, but what was so weird is I asked you how long do I have to register and you said probably the two years that I have to be on probation, but that guy down there in Atchison, I know that's a whole different story, but he said I have to register the rest of my life and now everything's kind of just hit me all at once, and I just, I still don't believe this it's going on.
....
“[THE PROSECUTOR:] And you and Mr. McQuillan discussed [the Defendant's Confirmation of Plea Bargain Agreement] fully?
“[CISNEROS:] Yes.
“[THE PROSECUTOR:] The document that he prepared?
“[CISNEROS:] Yes.
“[THE PROSECUTOR:] Okay, and did you feel like you had appropriate amount of time to discuss it with Mr. McQuillan, sir?
“[CISNEROS:] Not really. You know, not really.
....
“[THE PROSECUTOR:] You read it? You testified a while ago you read it, correct?
“[CISNEROS:] I read it, but he didn't like give me all the time in the world. He's always push, push, and this, and then later
....
“[THE PROSECUTOR:] In this document there's a sentencing grid. Have you seen the sentencing grid before?
“[CISNEROS:] Yes, from what I understand.
“[THE PROSECUTOR:] My question is just have you seen it before?
“[CISNEROS:] Yes.
“[THE PROSECUTOR:] And did Mr. McQuillan explain to you how it works?
“[CISNEROS:] Yes.
“[THE PROSECUTOR:] All right.
“[CISNEROS:] But what he did on June 7th he sits there and kind of throws my record in there and says this is your record and
“[THE PROSECUTOR:] June 7th is after you entered the plea.
“[CISNEROS:] Mo, June 7th I went to go see him at his office and then he throws down my record, and he said they didn't have no, your record on file, and he just like I don't know, to me it was just like slap in the face. It's just like hey whatever.
“[THE PROSECUTOR:] Okay.
“[CISNEROS:] I'm not trying to be angry or too misunderstanding, it's just that I was really blown away. Somebody—I mean I've been in jail for a year, and they just slapped my record down after a year and-a-half, year and-a-half.
....
“[THE PROSECUTOR:] Do you remember the advisement about your criminal history? The court informed you that if your criminal history was something that you didn't think it was that wouldn't be a ground to withdraw the plea, sir?
“[CISNEROS:] Well, see that's where I get mixed up because you're trying to get me saying everything yes, yes, and then you want to do whatever you're going on to do, and then I'm sitting here, trying to sit there and I don't have time to think. All I remember is over there, and then I got to thinking about when he was telling me and asking me the questions, and then the one you're asking right now can you repeat it one more time?
“[THE PROSECUTOR:] I'm sorry, Mr. Cisneros, I don't mean to pressure you.
“[CISNEROS:] You're trying to jam through it just like my lawyer. He just sits there and bam, bam, and then later
“[THE PROSECUTOR:] I'm sorry, I don't mean to do that.
“[CISNEROS:] Yeah.” (Emphasis added.)
In support of his claim, Cisneros cites State v. Toney, 39 Kan.App.2d 1036, 187 P.3d 138 (2008). According to Cisneros, in Toney, “despite both the defense attorney and the State's attorney admitting that it appeared that there may be a conflict of interest between Toney and his attorney, the district court failed to inquire into that conflict.”
Even as summarized by Cisneros, it is readily apparent that Toney's precedent is inapplicable to this case. In Toney, the defendant pled guilty based upon a plea agreement but prior to sentencing sent a letter to the sentencing judge advising: “ ‘There have been numerous instances in the handling of this case that I feel my counsel [Toney's public defender] was ineffective & harmful to the outcome of my sentence.’ “ 39 Kan.App.2d at 1038.
Later, a motion to withdraw plea was filed. At the hearing on the motion, the public defender advised the district court that Toney “ ‘relates to me that he is innocent of this charge and would ask this Court to set aside a plea [because] he believes that I was ineffective in representing him in the investigation of this case.’ “ 39 Kan.App.2d at 1038. The public defender continued, “ ‘I do believe there may be a conflict of interest if Mr. Toney assets that I was ineffective....’ “ Additionally, the prosecutor agreed with the public defender regarding the apparent conflict of interest. Still, the district court proceeded to deny the motion to withdraw plea without making any inquiry into the apparent conflict of interest between Toney and his attorney.
On appeal, our court was
“persuaded that Toney's public defender had divided loyalties at the hearing. Her purported ineffectiveness in investigating Toney's case prior to the plea was critical to her client's motion to withdraw plea. In order to faithfully and effectively represent Toney at the hearing, ... the public defender would be required to advocate against her client's legal position.” 39 Kan.App.2d at 1042.
Our court found that “the divided loyalties of Toney's public defender adversely affected her performance as Toney's counsel and created an actual conflict of interest.” 39 Kan.App.2d at 1044.
Unlike Toney, in this case there was no oral or written articulation from Cisneros prior to sentencing that he was claiming his counsel was ineffective or had a conflict of interest. Indeed, Cisneros' motion to withdraw plea contained no allegation that it was based on McQuillan's ineffectiveness. Moreover, unlike Toney, neither defense counsel nor the prosecutor alerted the district court to any apparent conflict of interest. Quite simply, Toney provides no factual or legal support for Cisneros' claim because in Toney —unlike in this case—there were repeated articulations of a conflict of interest by Toney, his attorney, and the prosecutor.
On the other hand, two Kansas Supreme Court cases, Hulett, 293 Kan. 312, and State v. Williams, 290 Kan. 1050, 236 P.3d 512 (2010), are more akin to the facts of this case and, therefore, provide guidance in resolving Cisneros' claim.
In Williams, the defendant moved to withdraw her no contest plea to felony murder prior to sentencing because she did not “ ‘ “believe that taking the plea [was] the best for [her].” ‘ “ 290 Kan. at 1051. At the plea withdrawal hearing, Williams' counsel encouraged the district court to hear directly from Williams and informed the court:
“ ‘1 would also put into the record a previous letter that she wrote to me [in] which she states, [’]after a lengthy discussion with my family members, it would appear that this was not done with my best interest in mind, rather as a quick resolution for you[']—you referring to me, Your Honor—[']and the State of Kansas. Therefore, I would like to withdraw my plea agreement.['] “ 290 Kan. at 1051–52.
Williams subsequently addressed the district court and, rather than complaining about her attorney's representation, she expressed concerns about the nature of the plea she entered. The district court ultimately denied Williams' motion to withdraw plea without inquiring of Williams' counsel, “who did not step forward with any argument,” or investigating whether a conflict of interest existed between Williams and her counsel. 290 Kan. at 1052.
On appeal, Williams contended the district court abused its discretion by failing to inquire into a potential conflict of interest. Our Supreme Court disagreed and held the district court did not abuse its discretion by not “address[ing] a nonexistent, possible conflict of interest between Williams and her attorney.” 290 Kan. at 1056. The Supreme Court explained that although the district court heard directly from Williams at the plea withdrawal hearing, “[n]othing in Williams' discussion with the judge indicated that she was concerned with the representation provided by her attorney beyond the fact that she had a misunderstanding about what she had pled to.” 290 Kan. at 1055.
Similarly, in Hulett, the defendant filed a presentencing motion to withdraw his plea, and at the withdrawal hearing, his attorney encouraged the district court to hear directly from Hulett because he did not “ ‘know the reasons' “ for his request. 293 Kan. at 316. Hulett then explained that he did not understand the meaning of felony murder when he entered his plea, there was no factual basis to support his plea, and he had maintained his innocence throughout the proceedings by telling his attorney he did not want to enter a plea. The district court denied his motion.
On appeal, Hulett contended the district court failed to exercise its duty to inquire about a potential conflict of interest. According to Hulett, his pretrial motion for substitute counsel, his “expression of dissatisfaction with [his attorney] at his plea hearing,” the “ ‘bare bones' motion to withdraw,” and his attorney's failure to advocate on his behalf at the plea withdrawal hearing “put the district judge on notice to inquire about a conflict, despite his failure to mention it.” 293 Kan. at 317–18.
Our Supreme Court found that Hulett failed to “explicitly” raise a conflict of interest allegation to the district court during the hearing. See 293 Kan. at 319–20. Moreover, it disagreed with Hulett's assertion that his attorney's incompetence was “implicit in the things he did say.” 293 Kan. at 320. On the contrary, the court found that Hulett's situation was analogous to Williams. Hulett, 293 Kan. at 320–21. Our Supreme Court concluded:
“As in Williams, we hold there is no error here in the district court's ‘failure to address a nonexistent, possible conflict of interest’ between Hulett and [his attorney] at the time of the bearing on the motion to withdraw plea. The district judge heard directly from Hulett at the plea withdrawal hearing, and Hulett's concerns related to the nature of the plea he had entered, not defense counsel's performance. Hulett did not reassert any problem he may previously have had with [his attorney]. There was no reason for the district judge to ‘become[ ] aware of a possible conflict of interest’ at that point. [Citation omitted.]” (Emphasis added.) 293 Kan. at 321–22.
Williams and Hulett are dispositive of Cisneros' claim. Prior to the hearing on the motion to withdraw pleas, Cisneros did not advise the district court that his attorney was ineffective or that a conflict of interest existed. In fact, at the plea hearing, Cisneros never indicated that he felt pressured into entering his pleas or was otherwise dissatisfied with McQuillan's services:
“THE COURT: Have you and Mr. McQuillan had sufficient time to discuss the charges against you and the elements of each charge?
“[CISNEROS:] Yes.
“THE COURT: Have you had sufficient time to discuss your procedural rights, defenses, trial tactics and potential outcomes to your satisfaction?
“[CISNEROS:] Yes.
“THE COURT: Have you and Mr. McQuillan had sufficient time to talk about motions that might be filed prior to trial or during trial?
“[CISNEROS:] Oh, yes.
“THE COURT: And motions to suppress statements and evidence, and motions to limit, and things like that?
“[CISNEROS:] Yes.
“THE COURT: Have you and Mr. McQuillan had sufficient time to review the substance of the evidence against you to include police reports, investigative reports, statements of witnesses, and other relevant materials?
“[CISNEROS:] Yes.”
In the present case, there was never an explicit oral or written statement made by Cisneros that articulated a conflict of interest or ineffective assistance of counsel claim. In particular, the written motion for withdrawal of pleas listed seven separate grounds justifying the withdrawal of Cisneros' pleas and no ground suggested any allegation of conflict of interest or counsel's ineffectiveness. Given Cisneros' testimony in response to the district court's detailed questioning at the plea hearing, his spontaneous complaints at the hearing on the motion to withdraw pleas that McQuillen “didn't like give me all the time in the world” or his vague accusation that the prosecutor was “trying to jam through it just like my lawyer” did not constitute an articulated statement of attorney dissatisfaction sufficient to trigger the district court's duty to inquire further into a potential conflict of interest.
Denial of Motion to Withdraw Pleas
Alternatively, Cisneros contends the district court abused its discretion by denying his motion to withdraw pleas because the evidence showed good cause to grant the motion.
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, withdraw a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2013 Supp. 22–3210(d)(1). When determining whether the defendant has shown good cause, Kansas courts generally consider the following three factors commonly referred to as the “ ‘Edgar factors'—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006) ”: “(1) whether the defendant was represented by competent counsel, (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) whether the plea was fairly and understandingly made. [Citations omitted.]” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010).
Appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. State v. Macias–Medina, 293 Kan. 833, 836, 268 P.3d 1201 (2012). Earlier, we set forth Kansas law regarding when a judicial action constitutes an abuse of discretion. See Ward, 292 Kan. 541, Syl. ¶ 3.
Cisneros claims that he established good cause to withdraw his pleas because he “fulfilled at least two of the three Edgar factors,”i.e., he was misled, mistreated, and unfairly taken advantage of by McQuillan and his pleas were not fairly and understandingly made. In particular, Cisneros alleges that McQuillan misled him by improperly informing him that he would have to “register as a sex offender during the 2 years that he would be on probation” and by pressuring him to accept the plea agreement. Cisneros further maintains that his pleas were not fairly and understandably made because he was not “fully aware of the circumstances involving his criminal history or the registration requirement” when he entered his no contest pleas. We will address the two Edgar factors separately.
Was Cisneros Misled or Coerced by His Attorney?
Cisneros claims he was misled by McQuillen when the attorney advised him he would only have to register as a sex offender for 2 years. Although Cisneros made this claim during his testimony at the hearing on the motion to withdraw pleas, there was considerable evidence to refute his assertion. First, the Defendant's Confirmation of Plea Bargain Agreement, which Cisneros told the district court he read, signed, and understood prior to his pleas, plainly stated that Cisneros' pleas would subject him to lifetime registration as a sex offender. The prosecutor's letter attached to the document also informed Cisneros of the lifetime registration requirement. Additionally, the prosecutor also mentioned the lifetime registration requirement during the plea hearing. Most importantly, however, the district court advised Cisneros on three separate occasions during the plea hearing that there was a lifetime registration requirement. On each occasion, Cisneros indicated that he understood.
Against this evidentiary backdrop, with Cisneros and McQuillen both present and participating in the plea proceedings, it is inconceivable that Cisneros would believe that he only needed to register as a sex offender for 2 years because McQuillen somehow misrepresented the duration of the sex offender registration.
Moreover, given the district court found that McQuillen did not mislead Cisneros, the district court's assessment of the credibility of the defendant's testimony is important. The same district judge presided over both the plea hearing and the plea withdrawal hearing and was, therefore, in the best position to discern whether Cisneros' testimony was credible. In this regard, the district judge determined:
“The court notes that [Cisneros] has some limitations in his ability based upon the Larned report, but in listening to him testify, listening to him recall things, and things like that, he has a convenient memory. He can remember things that are favorable to him, but all of the sudden can't remember anything that's not favorable to him. The court finds that after evaluating him as a witness that perhaps he is glossing over some of the things that not only Mr. McQuillan has talked with him, but specifically the court has talked [about].”
The district court determined the version of events Cisneros advanced at the plea withdrawal hearing did not comport with what actually occurred during the plea bargaining and plea hearing. Our court will not question the trier of fact's credibility determinations on appeal. See Macias–Medina, 293 Kan. at 839 (When the same judge presides over the plea hearing and the plea withdrawal hearing, that judge is in “the best position to resolve conflicts in the testimony and make the determination ... [whether the defendant's] pleas were knowingly and intelligently made.”); accord State v. Anderson, 291 Kan. 849, 855–57, 249 P.3d 425 (2011). We conclude there was substantial competent evidence to prove that Cisneros was not misled or misinformed by McQuillen regarding the duration of the sex offender registriation.
In a related matter, Cisneros makes a one sentence statement in his brief that he “testified to feeling pressured into entering the plea, and that his attorney was pushing him to do so.” An issue not briefed by the appellant is deemed waived and abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Moreover, a point raised incidentally in a brief and not argued therein is also deemed abandoned. State v. Llamas, 298 Kan. 246, 264, 311 P.3d 399 (2013). This point on appeal is waived and abandoned.
For the sake of completeness, however, in our review of the record we did not find any evidence to support this claim. As noted earlier, Cisneros' occasional vague and spontaneous responses to questions during the hearing on the motion to withdraw pleas pale in evidentiary significance when compared to the repeated affirmations Cisneros made during the plea hearing that McQuillen fully informed him about matters relating to the plea agreement and did not coerce him in any way regarding his pleas.
Were the Pleas Fairly and Under standingly Made?
Cisneros argues that his confusion regarding the duration of the sexual offender registration and his criminal history resulted in pleas that were not fairly and understandingly made. We have previously considered and rejected Cisneros' claim that he was misled or confused about the duration of the sexual offender registration.
Did Cisneros unfairly and mistakenly plead no contest because of confusion regarding his criminal history? At the hearing on the motion to withdraw pleas, Cisneros explained that although he knew he had a criminal record, he thought his criminal history score would only include sex related crimes. As a result, when conferring with McQuillen, although Cisneros “made it sound like [he] didn't have no [sic ] record period[,] ... [he] didn't mean it like that.” Cisneros attributed his mistaken belief to a variety of somewhat conflicting factors, including McQuillan asking about prior convictions without “really [going] into detail”; Cisneros' brain damage, which causes him not to “remember anything too much”; his belief that everyone knew about his criminal record, and that he does not “like to talk about [the things on his record].
At both the plea hearing and the plea withdrawal hearing, Cisneros acknowledged that he had read and signed the Defendant's Confirmation of Plea Bargain Agreement which McQuillan had prepared. Significantly, in this document Cisneros stated: “I understand that notwithstanding what I, my attorney, or the County Attorney believe to be as my criminal history, the final presentence report shall be controlling.” Cisneros also indicated that “based on what I have advised you is my criminal history” the offenses would result in grid block classification of 5–I. Of note, Cisneros' statement was not limited to a history of sex related crimes, but it referenced his criminal history generally. This border box classification would allow probation rather than presumptive imprisonment if the district court made certain findings. The document also contained a copy of the sentencing range for nondrug offenses, the prosecutor's plea offer letter, and McQuillan's written response confirming the plea agreement. At the plea hearing, Cisneros acknowledged that he read and signed the document, reviewed all of the attached materials prior to entering his pleas, and asked McQuillen questions about them.
Cisneros' acknowledgement of reviewing the prosecutor's plea offer letter to McQuillen is important given that the letter states:
“I understand you believe your client would fall in a border box for criminal history purposes. I in no way warrant your opinion of your client's criminal history. If you or your client's opinion of his criminal [history] is inaccurate, that fact will not result in a breach of this Plea Offer once [Cisneros] has entered his pleas .”
Likewise, McQuillan's response to the prosecutor's letter explained that “Cisneros should be 5–I border box based upon what he has advised is his criminal history. Cisneros will request a non-prison sanction and obtain an evaluation in support of such request. The State of Kansas will not object to such request.” (Emphasis added.)
At the plea hearing, the district court informed Cisneros that his criminal history would be determined at the time of sentencing, and the district court confirmed that Cisneros understood that under the plea agreement any mistaken understanding regarding his likely criminal history score would not serve as a basis for withdrawing his pleas:
“THE COURT: The court would also advise you that criminal history will be determined at the time of sentencing.
“[CISNEROS:] Uh-huh.
“THE COURT: If you enter a plea today and you've not told us about something in your past or not told your attorney about something, you believe something is one thing and it's not, that matters not. It will not serve as the basis for withdrawing your plea at a future date, you understand that?
“[CISNEROS:] Yeah.”
The district court's admonition was not limited to a criminal history of sex related crimes. Rather, the district court spoke in broad terms of “something in your past.” At the hearing on the motion to withdraw pleas, Cisneros admitted the district court informed him that an inaccurate belief as to his criminal history score would not serve as a basis to withdraw his pleas.
On this record, we are not persuaded the district court abused its discretion in finding that Cisneros did not show good cause to withdraw his pleas. The record shows that the importance of Cisneros relating his prior crimes was repeatedly stated and that Cisneros understood that any mistaken understanding of his criminal history could affect his sentences but not breach the plea agreement or allow withdrawal of his pleas. Moreover, the sundry contradictory explanations for why Cisneros testified he did not disclose his actual criminal history to McQuillen supports the district court's finding that Cisneros testimony was less than credible.
Finally, we have carefully reviewed the plea hearing. The district court thoroughly questioned Cisneros to insure that he was pleading no contest with a full understanding of his rights, the charges against him, the plea agreement, the potential sentences, and the consequences of his pleas. At the plea withdrawal hearing, the district court considered the evidence and found that Cisneros had failed to show good cause existed to set aside his pleas. The district court concluded that Cisneros knowingly, fairly, and voluntarily entered his pleas. There is substantial competent evidence to support the district court's ruling, and we find no abuse of discretion.
Failure to Properly Calculate Criminal History at Sentencing
Cisneros' presentencing investigation (PSI) report calculated his criminal history score as a C based, in part, upon the classification of his 1992 Oklahoma conviction for assault with a deadly weapon as a person felony. Relying upon State v. Murdock, 299 Kan. 312, Syl. ¶ 5, 323 P.3d 846 (2014), Cisneros contends the district court imposed an illegal sentence based on an erroneous calculation of his criminal history. In particular, Cisneros argues his 1992 Oklahoma conviction should not have been classified as a person crime. The State concedes the error.
As Cisneros acknowledges, he failed to raise this issue below. Although the district court specifically questioned McQuillan and Cisneros as to the accuracy of the PSI at sentencing, both men orally stipulated to the accuracy of the information. Citing State v. Donaldson, 35 Kan.App.2d 540, 544, 133 P.3d 154 (2006), however, Cisneros argues that he is not precluded from challenging the legal classification of his prior Oklahoma conviction. We agree with Cisneros. In Donaldson, a panel of this court recognized an exception to a defendant's obligation to object when it found that “no party can properly stipulate to an incorrect application of the law.” 35 Kan.App.2d at 544.
As the State acknowledges, during the pendency of this appeal, our Supreme Court addressed a similar sentencing challenge in Murdock. In Murdock, our Supreme Court held that because Kansas did not begin classifying crimes as person or nonperson offenses until the adoption of the Kansas Sentencing Guidelines Act (KSGA) in 1993, district courts must classify all-out-of-state convictions committed prior to the enactment of the KSGA as nonperson offenses for criminal history scoring purposes. See Murdock, 299 Kan. at 319.
Our court is duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Murdoch is dispositive of this issue. The district court erred in classifying Cisneros' pre–1993 Oklahoma conviction as a person felony. Accordingly, Cisneros' sentences are vacated, and this case is remanded with directions for resentencing in accordance with Murdoch.
The convictions are affirmed, the sentences are vacated, and the case is remanded with directions.